Human Rights - cases

Question 1

Entick v Carrington (1785)

Answer 1

RULE OF LAW

state must point to some legal authority before it can infringe on the rights of the individual

Question 2

Malone v MPC

Answer 2

COMMON LAW BACKFIRES
if no specific rules situation can arise where individual does not have a particular right, and since the state is a person, it can do all the things a normal person can do if it doesn’t infringe on legal rights
- tapping phone
- won at ECtHR

Question 3

ex parte Leech (no.2)

Answer 3

Preventing letter to leave prison

• even most minimalist theory of (Raz) ROL says there must be a constitutional right to access to the courts
• common law constitutional rights override legislation

Question 4

ex parte Witham

Answer 4

Statutory duty to set court fees does not mean chancellor can set it at a level which denies access to justice
- against common law constitutional rights

Question 5

Derbyshire CC v Times

Answer 5

• public authority cannot sue for libel
• common law principle of freedom of speech
• no need to rely on art.10 if common law already covers it
• common law can only be overridden by express statutory provision

Question 6

DPP v jones

Answer 6

• individuals have a constitutional common law public right of peaceful assembly
• stone henge case

Question 7

ex parte simms

Answer 7

common law constitutional rights are protected from parliament
- to override, which they can by PSOV, must accept political consequence and do it in clear and express words

Question 8

Osbourne v Parole Board

Answer 8

if parliament withdraw from ECHR, common law will still be there to protect

Question 9

ex parte Brind

Answer 9

HL held that they could not apply art. 10 as that would be introducing ECHR ‘through the back door’
- parliament had not released HRA yet

Question 10

ex parte Smith … Smith & Grady v UK

Answer 10

Homosexuals in army

• courts applied ‘anxious scrutiny’ so MOJ had to justify why restriction was necessary
• HL did not allow - not up to them to make a judgement

ECtHR

• VIOLATION of art.8
• justification did not meet proportionality test

Question 11

R v A (no.2) Steyn

Answer 11

s.4 should be avoided - it is a last resort

“it must be avoided unless it is plainly impossible to do so”

Question 12

R (Ullah) v Special Adjudicator

Answer 12

BINGHAM’S MIRROR PRINCIPLE

• follow ECtHR decisions as far as possible
• purpose of ECtHR is for a standard level of HR across all signatory states; if domestic courts go off on their own and provide interpretations contrary to what ECtHR wished, this frustrates the primary purpose of ECHR

Question 13

R v Horncastle

Answer 13

UK law allows hear say evidence (where no cross examination of witness statement because they have fled)

• art.6 requires cross examination for witnesses against him
• ECHR held it unlawful
• UK courts refused to listen to ECtHR, because they ‘fundamentally misunderstood’ UK law which had safeguards etc

Question 14

Secretary of State v AF

Answer 14

ECtHR in A v UK considered an identical matter

• HL regards itself bound
• Hoffman thought decision was wrong but still followed it

Question 15

R (Chester) v SS for Justice

Answer 15

there must be some “truly fundamental principle of law” before it is appropriate for SC to refuse to follow Grand Chamber decision

• especially if the issue is identical
• courts will be reluctant to go against ECtHR

Question 16

Al-Khawaja v UK

Answer 16

ECtHR considered Horncastle - said UK were not violating art.6 (mostly because it wasn’t fundamental evidence; would have been prosecuted without it)
- ECHR said there may be situations where ECHR is applied differently to domestic courts b/c of particularities of the law and culture of signatory states

Question 17

Hutchinson v UK

Answer 17

If Grand Chamber misunderstands UK law, UK courts and sections of ECtHR may refuse to follow grand chamber
- ECtHR only regards itself as illustrative

Question 18

R v A (No.2)

Answer 18

• D denied the right to cross examine because it is judges discretion in sexual offence cases (about cross examining whether V had previous relations)
• HL held s.3 is not compatible with art.6 because there should be cross examination of all witnesses against the person
• judge legislated using s.3

Question 19

S (Children) and Re W (Care Orders)

Answer 19

Children’s care legislation had serious flaws violating art.6 and art.8

• courts had to declare s.4
• interpretation would essentially re-legislate

Question 20

Ghaidan v Mendoza

Answer 20

HIGH INTERPREATION - clearly not what P intended

• “as if husband and wife”
• parliament at the time banned homosexuality so clearly didn’t intend for that to include gays
• courts used s.3

Question 21

Bellinger v Bellinger

Answer 21

post operative MTF wasn’t allowed to get married

• violating art.8
• courts declared s.4
• couldn’t contradict legislation completely

Question 22

ex parte Anderson (2002)

Answer 22

Courts will not usurp the role of parliament

• cannot literally legislate
• legislation said ‘secretary of state’
• courts cannot just explicitly change legislation
• s.3 is to read and give effect if it is possible to do so

Question 23

Handyside v UK

Answer 23

“i think therefore i am”

• freedom of speech is really important
• even words that “offend, shock, or disturb the state or population” are still protected
• BANNING publications which offended public morality was deemed okay

Question 24

Steel & Morris v UK (2005)

Answer 24

defamation of McDonalds was of public interest so art.10 protected it

Question 25

Otto Preminger Insitute v Austria

Answer 25

local authorities had discretion to disallow showing of a film to protect religious sensitivities in the area

Question 26

Sunday times v UK

Answer 26

restrictions of an in-depth article regarding Thalidomide litigation
- ECtHR said that it was too excessive to protect judiciary and unnecessary and against art.10

Question 27

Goodwin v UK

Answer 27

revealing journalist’s source is an excessive restriction of freedom
- they are subject to the “most careful scrutiny” and could only be justified if there is an overriding public interest